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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Wednesday, April 29, 2009

Yeah, it's legal

In 1993, the voters of New York City passed a referendum that places term limits on elected officials. Last year, the City Council overturned that law, notably allowing Mayor Bloomberg to seek a third term. Can the City Council overturn the will of the voters this way? The answer: yeah, its legal.

The case is Molinari v. Bloomberg, decided on April 28. One of the arguments made here is that the City Council violated the First Amendment in overturning the term-limits law because last year's enactment discourages citizens from further participating in the referendum process. After all, what's the point of passing a citizen referendum if the legislature is going to repeal it down the road?

There are limits to how the government can regulate the referendum process, i.e., in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court ruled that it violates the First Amendment to require petition circulators to be registered voters, and they also cannot be forced to wear identification badges. These requirements drastically reduced the number of people available to circulate petitions. The rules in Buckley and other similar cases were unconstitutional in how they regulated who could circulate petitions and how they could do so.

These cases are unlike the term-limits rescission, however. There is no right to legislate by referendum, and there is also no constitutional prohibition against the government repealing a law that the citizens enacted through referendum. It's distinctions like this which make the constitutional world turn. Just because the Supreme Court has struck down restrictions governing the referendum process does not mean that the City Council cannot take action in respect to the 1993 term limits referendum. Other courts have similarly ruled, i.e., the Tenth Circuit which held a few years ago that the State of Utah was able to require that wildlife referenda (as opposed to citizen initiatives on other subjects) could not be passed without a super-majority of the voting public. So, even if the City Council has made it more difficult for the citizens to organize referenda in the future, "the difficulty in the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the [referendum process] is not affected."